Ralston v. Groff

The opinion of the court was delivered, July 3d 1867, by Agnew, J. — This case appears to have been fairly submitted to the jury upon proper instructions. The errors assigned complain chiefly of the statements of the testimony made by the court, but these do not appear in any binding form; and seem to have been referred to merely for the purpose of directing the attention of the jury to the real issues before them. We see nothing in these statements calculated to mislead, while the points of controversy were fairly submitted. It is not improper in a court to draw the attention of the jury to the material facts proved, in order to exhibit the true points of controversy ; provided it is not so done as to mislead them, or in a manner so onesided as to become unfair. [279] The 1st assignment of error is founded in a misconception of the meaning of the judge. It was Groff’s title to his own tract of land which the judge referred to as undisputed, not the title to the interference, or locus in quo. It was not error to charge, as is complained of in the 5th error assigned, that twenty-one years’ peaceable possession of the interference would prevent the courses and distances of the elder survey from controlling the title. While it is generally true that in the absence of marks of the original survey being found upon the ground, the courses and distances in the return of the survey will govern, and in the case of interfering surveys, will give title to the older survey, this is not an invariable rule. In the case of very ancient surveys, such as these (which were more than one hundred years old and lay in an old settled county), it cannot be expected that the ancient landmarks will always be found. Their places must therefore be supplied by secondary evidence. The peaceable possession of land for a very long time under an ancient survey is strong evidence of its location, when the ancient landmarks are not to be found; especially in such a case where two or three generations of men have passed away since the survey was made, and the testimony of living witnesses cannot be produced to point out where those landmarks stood. Every one familiar with the subject of old surveys made by men often not very skilful and oftentimes in haste to pass over the ground, knows how frequently mistakes creep in from bad chaining, and also from transferring the work to the field-notes, and thence into the return of survey. The return of survey which is so far removed by transfer from the original work upon the ground is permitted to govern only when the evidence of location is no longer accessible. There is nothing in any of the other assignments of error which needs particular notice. Judgment affirmed.